Australia’s constitution stands up to pressure

Phillip Lynch was not renowned for a boisterous sense of humour while he was
Malcolm Fraser
’s deputy Liberal leader. But Lynch was in sparkling form when this reporter dropped by his office on November 10, 1975, to ask him about the deep rift between Coalition senators over Fraser’s decision to block the Whitlam government’s budget. Lynch said with a straight face, “there is not one scintilla of evidence for the charge". Then promptly burst out laughing.

The underlying message lay in Lynch’s choice of words. They were exactly the same ones he used as army minister in 1968 when he wrongly denied claims that Australian soldiers had subjected a Vietnamese woman to “water torture". Lynch later made an embarrassing correction.

Last Monday, retired high court judge
Anthony Mason
provided fresh information about the events of November 1975 that reinforce just how hard it is to achieve bipartisan support for constitutional change, ranging from the vice-regal powers to redefining the roles of the Commonwealth, state and local governments or indigenous academic Marcia Langton’s proposal that the constitution should no longer define Aboriginal people as a race. There is no hint of any change to the present text, in which the prime minister doesn’t crack a mention, while the governor-general retains some prerogatives of an absolute monarch.

Mason confirmed historian Jenny Hocking’s revelation in a new book that despite being a high court judge, he secretly advised then governor-general Sir John Kerr over an extended period about his preparations to dismiss
Gough Whitlam
as prime minister. Mason even drafted a possible dismissal letter for Kerr, who replaced Whitlam with Fraser on November 11, 1975, and ordered an election.

Although the beneficiaries are unlikely to agree, Mason’s participation in such a divisive issue suggests the crucial principle of the separation of judicial and executive branches of government needs formal expression.

Mason said that Kerr told him that the Senate “remained firm in its resolve in not granting supply, a statement which I assumed was based on information provided by Mr Fraser". Unsurprisingly, Fraser was not a disinterested observer. However, several Coalition senators from that period have confirmed Lynch’s inference that they were about to cave in.

Neville Bonner
and Don Jessop have said they had decided to give the two votes to pass the budget. Bonner said the crisis would have been over “in a matter of hours", in which case parliament would have resolved the crisis without the need for Kerr’s intervention.

By that stage, the continuation of the Labor government until a normal election would not have been a national disaster. The fiscally conservative
Bill Hayden
had replaced Jim Cairns as treasurer;
Jim McClelland
was urging wage restraint in Clyde Cameron’s place as industrial relations minister; and a policy moderate, Ken Wriedt, had replaced Rex Connor in minerals and energy. Most other ministers were competent enough.

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Kerr started thinking about dismissing Whitlam long before Fraser blocked the budget. He discussed whether to take the vice-regal job with Mason, who said he cautioned him that it merely involved rubber-stamping others’ decisions. But Kerr replied that an occasion could arise for him to exercise the governor-general’s “reserve powers". However, the constitution does not refer to these powers, which Kerr used to sack Whitlam, let alone specify the constraints on their use.

Contrary to his reputation as a radical, Whitlam was very much a conservative on constitutional arrangements, where he was strongly influenced by British traditions, including the one that precludes the Queen from sacking a prime minister with majority support in the House of Commons.

He assumed that the Senate would follow the precedent created by the 1911 law that prevents the House of Lords from blocking a money bill for more than a month.

He mistakenly took it for granted that Kerr would always obey the conventions requiring him to take the advice of a prime minister and would never appoint a replacement without a majority in the House of Representatives.

Unless the conventions and reserve powers are codified or abolished, it is hard to see how Labor will ever advocate moving to a republic in which an elected president inherits these presumed powers. Even some powers in the written constitution, such as a governor-general’s right to veto bills passed by parliament, will have to be addressed before then.

Constitutional change is difficult to achieve in a referendum that lacks bipartisan support. While the Coalition parties are unlikely to back initiatives to clarify the powers of a governor-general, Labor is unlikely to support broader changes to reverse the Commonwealth’s expanding power.

Yet a reforming Coalition government could make a case for devolving some power to state and local governments, even though the Fraser and Howard governments went in the opposite direction.

Meanwhile, Opposition Leader
Tony Abbott
gives scant indication that he takes much notice of the constitution. He told the Coalition party room in mid-August that Prime Minister
Julia Gillard
would be “cheating" if she held the next poll after the end of August 2013.

The constitution and the electoral laws allow Gillard to hold an election as late as November 30. Their admirable clarity on this removes any scope for Gillard to cheat. Her freedom to pick that date can only be curtailed if Governor-General
Quentin Bryce
relies on unwritten reserve powers, and secret advice from a high court judge, to sack her before then.